Is Every Educational Use a Fair Use?

How freely can you and the students you teach use Internet and multimedia resources in projects and Web pages? Lily Compton guides you on a tour of the issues. See Sylvan Payne's Portal article, "A Song-Based Grammar Lesson in Record Time," Essential Teacher, March 2006, pp. 42-45.

Mr. Young, a U.S. high school teacher, had instructed his class to create a Web page on the topic of Hurricane Katrina, which had recently destroyed much of the U.S. city of New Orleans. Here's how the students carried out the assignment:

  • They found a Web page design that seemed to fit their project, and they copied its HTML codes.
  • From the Internet, they collected many images showing the destruction.
  • They digitized and posted the song "Louisiana 1927" by Randy Newman.
  • To spruce up the page, they downloaded some digital graphics from a free graphics site.
  • They included reflections and discussions from blogs and electronic discussion lists as well as news excerpts and audio recordings from online news sites.
  • They posted local news from New Orleans that a couple of students had received in personal e-mails.
  • Along with other links they had found, they posted a comprehensive list of links relating to Hurricane Katrina from another Web site.

Which aspects of the class project are in violation of copyright and fair use? What do the instructor and students need to do in order to maintain fair use?

Ease of Use Does Not Mean Fair Use

The scenario above includes many issues of fair use relating to Web site layouts, digital images and graphics, resources from electronic mailing lists and public domains, and e-mails. Teachers and students often assume that every use of resources is fair use because it is for education. While there is some truth to this assumption, you and the students you teach need to be aware of the limitations surrounding the fair use of copyrighted materials.

As teachers incorporate multimedia projects into their classes, students have little difficulty doing research and finding graphics, video, and audio files on the Internet. But just because technology has made it easy to download, save, or cut and paste does not mean that copyright and fair-use laws have not been violated.

A few years ago, when I worked on a visual media project for a course, the instructor told the class to consider copyright and fair use issues as we incorporated materials and resources. The only guidelines the instructor gave us were to cite our sources, ask for permission, and read the conditions specified by the authors. I remembered the golden rule of thumb for fair use in education--copy no more than 10 percent--but I was never sure what that 10 percent referred to. And today, with all the different technologies, educators need to be even more cautious about copyright and fair use issues.

The Basics of Copyright and Fair Use

According to Wikipedia, copyright is "the right of ownership that attaches to a broad range of intellectual property" (http://en.wikipedia.org/wiki/Copyright) and fair use "provides for the licit, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test" (http://en.wikipedia.org/wiki/Fair_use).

The Four Factors of Fair Use

The "four-factor balancing test" that was incorporated into the Copyright Act of 1976 (U.S. Copyright Office 2003, http://www.copyright.gov/title17/) should be the primary guideline for anyone wishing to use materials and works with fair use. The four factors are

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work. (U.S. Copyright Office 1995, 6, http://www.copyright.gov/circs/circ21.pdf)

Copyright and Fair Use Resources

The links below will give you more information on copyright and fair use in education. Note that they pertain to the laws in the United States. To find out about these issues in other countries, you'll need to do more research, starting with the Berne Convention and the Universal Copyright Convention (see U.S. Copyright Office 2003, appendix 6, http://www.copyright.gov/title17/92appvi.html; United Nations Educational, Scientific, and Cultural Organization 1971,http://www.unesco.org/culture/laws/copyright/html_eng/page1.shtml.

Fair Use, Multimedia, and the Internet

These six sites contain information on the issues of fair use in the scenario at the beginning of the article:

These online resources provide more guidelines for educational multimedia, the Internet, and distance learning.

General Copyright and Fair Use Issues

For more general information on copyright and fair use, see these sites:

References

United Nations Educational, Scientific, and Cultural Organization. 1971. Universal Copyright Convention as revised at Paris on 24 July 1971.http://www.unesco.org/culture/laws/copyright/html_eng/page1.shtml.

U.S. Copyright Office. 1995. Reproduction of copyrighted works by educators and librarians. Circular 21. Washington, DC: U.S. Government Printing Office.http://www.copyright.gov/circs/circ21.pdf.

U.S. Copyright Office. 2003. Copyright law of the United States of America. Circular 92. Washington, DC: U.S. Government Printing Office.http://www.copyright.gov/title17/.

Wikipedia. S.v. Copyright. http://en.wikipedia.org/wiki/Copyright. Accessed December 29, 2005.

Wikipedia. S.v. Fair use. http://en.wikipedia.org/wiki/Fair_use. Accessed December 29, 2005.

Lily K. L. Compton (lilycompton@yahoo.com) is working on her PhD in curriculum and instructional technology, with a minor in applied linguistics and technology, at Iowa State University, in the United States.